Sandhya P.T. vs Sivadasan P.V.

Thomas P. Joseph, J.—These petitions are filed by the wife seeking transfer of O.P (G& W) No. 791 and O.P. No. 90 of 2012 from the Family Court, Malappuram to the Family Court, Ernakulam. The former is for custody of children while the latter is for restitution of conjugal rights, both filed by the respondent who is residing at Pothukallu, near Nilambur. Petitioner, aged 30 years is a resident of Aluva. The request for transfer is on the ground of inconvenience. The learned counsel for the petitioner submitted that the petitioner is employed as a Peon in a School at Aluva earning around Rs. 3,000/- per month and in connection with O.P(G& W) No. 791 of 2012 she has to take her three children aged between 4-8 years to the Family Court at Malappuram which according to the learned counsel is very inconvenient. Moreover, since the petitioner is only 30 years old she has to be accompanied by somebody which also involves expense.

The learned counsel for the respondent submitted that the respondent met with an accident in December, 2010 and following that his right foot is disfigured. The learned counsel has shown me photographs to show the disfigurement. It is also suggestion of the learned counsel that in case this Court is inclined to allow the request for transfer, the cases may be transferred to the Family Court, Thrissur since that will reduce the inconvenience of the respondent. It is submitted that the petitioner and children could go to the Family Court, Thrissur by train from Aluva.

In response it is contended by the learned counsel for petitioner that the petitioner will find it extremely difficult to reach the Family Court, Thrissur which itself is far away from Aluva, along with the three children aged between 4-8 years which involves expense. The respondent can by train come from Nilambur to Ernakulam.

The Supreme Court in Sumita Singh Vs. Kumar Sanjay and Another, and Arti Rani @ Pinki Devi and Another Vs. Dharmendra Kumar Gupta, has held that while considering request for transfer of matrimonial proceedings, convenience of the wife has to be looked into. True that the respondent has suffered disfigurement of his right foot but no difficulty for travelling is pointed out. If the cases continue at the Family Court, Malappuram or is transferred to Thrissur, necessarily, the petitioner has to travel a long distance to Malappuram or Thrissur as the case may be with three children which also is inconvenient for the petitioner. Moreover since petitioner is aged 30 years, she has to be accompanied by somebody which also involves expense. The respondent has also some inconvenience since he is residing at Nialbaur and has to travel to Ernakulam. I must bear in mind that Nilabur and Shornur and Shornur and Ernakulam are connected by rail. The inconvenience that may be caused to the respondent can be reduced by permitting him to appear in the transferee court through counsel except when his physical presence is required. Having regard to the various factors I am of the view that the hardship is comparatively more on the petitioner in case request for transfer is not allowed. Hence I am inclined to allow the petitions.

Resultantly, the Petitions are allowed in the following lines:

(a) O.P(G& W) No. 791 of 2012 and O.P. No. 90 of 2012 pending in the Family Court, Malappuram are withdrawn from that court and made over to the Family Court, Ernakulam for trial and disposal.

(b) The transferor court while transmitting records of the cases to the transferee court shall fix the date for appearance of the parties in the transferee court with due intimation to the counsel on both sides.

(c) It is made clear that except when the physical presence of the respondent in the transferee court is necessary, he can appear through counsel.

All pending interlocutory applications will stand dismissed.